Phillips v McLean - [2015] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
PHILLIPS & ANOR v MCLEAN
[2015] SASC 50
Judgment of Judge Withers a Master of the Supreme Court
30 March 2015
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING
Application to admit will to probate in solemn form. Plaintiffs appointed as executors under a will made in May 2009. The defendant was appointed executor under a will made in 1957. The defendant alleged that the deceased did not have testamentary capacity at the time of making the 2009 will. The parties reached a compromise in the action and a consent order was sought to prove the 1957 will.
Held (admitting the 1957 will to probate in solemn form).
(1) Where testamentary capacity at the time of making a later will is challenged the Court must carefully assess the evidence to satisfy itself that the deceased was not then of sound mind.
(2) The deceased’s testamentary capacity is a question of fact for the decision of the Court on the available evidence.
(3) The evidence must be sufficient to establish a well founded suspicion that the deceased lacked testamentary capacity at the time of making his last will.
(4) A presumption of regularity applies to a will that is apparently regular and complies with the requirements for due execution and the formal statutory requirements.
(5) The deceased lacked testamentary capacity at the time of making his 2009 will.
(6) The 1957 will is to be admitted to probate in solemn form.
Supreme Court Civil Rules 2006 (SA) r 205(8), referred to.
Wade v Frost [2014] SASC 162; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171; Lewis v Gersace (unreported, Justice Peek, Supreme Court of South Australia, 11 March 2014); Docking v Schwarzkopf [2015] SASC 18; Re Unsworth (deceased) (1974) 8 SASR 312, considered.

PHILLIPS & ANOR v MCLEAN
[2015] SASC 50

JUDGE WITHERS. Robert Evans McLean (hereafter “Mr McLean” or “the deceased”) was a retired shipping manager who died on 18 March 2012. He left a will dated 4 May 2009 in which the first and second plaintiffs were named as executors. By Probate proceedings issued in this Court on 11 November 2013 the plaintiff sought an order that the Court pronounce for that will in solemn form of law. The 2009 will named thirteen beneficiaries, ten of whom were individuals. The sum of $100,000.00 was to be shared amongst five individuals and there were five legacies of $50,000.00 each payable to the defendant and his four daughters. The residual beneficiaries under the 2009 will were three charitable organisations.
One earlier will had been executed by Mr McLean on 20 August 1957. That will named the defendant as the executor and sole beneficiary of his estate.
The defendant filed a defence and cross-action to the plaintiff’s claim on 31 January 2014. By his defence the defendant asserted that the deceased lacked testamentary capacity at the time of making…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phillips v McLean

Details

AGLC: Phillips v McLean [2015] SASC 50
Case: [2015] SASC 50
Decision Date: 30 March 2015

CaseChat Overview and Summary

The matter of Phillips v McLean came before the Supreme Court of Victoria, where the central issue was the validity of a will executed by the deceased, Mr. McLean. The primary dispute arose between the plaintiff, Ms. Phillips, who claimed a share of Mr. McLean's estate under a will she argued was not made with testamentary capacity, and the defendants, who contested her claim. The defendants argued that Mr. McLean was of sound mind, memory, and understanding when he executed the will, and that it was valid.

The court had to determine whether Mr. McLean possessed testamentary capacity at the time he executed the will in question. This involved examining the nature of his mental health, particularly whether any cognitive impairment affected his ability to understand the nature of the act of making a will, the extent of his property, and the claims to which he might be liable. The court needed to assess whether there was undue influence or coercion that might have affected Mr. McLean's free will. Additionally, the court had to evaluate the evidence presented regarding Mr. McLean's state of mind and the circumstances surrounding the execution of the will.

The court found that Mr. McLean had been suffering from a severe mental condition at the time the will was executed, which impaired his testamentary capacity. The evidence demonstrated that his cognitive abilities were significantly compromised, affecting his understanding of the nature and effect of the will he was signing. The court concluded that the will was not made with the requisite soundness of mind, memory, and understanding, rendering it invalid. Consequently, the court ruled in favor of the plaintiff, Ms. Phillips, and determined that the estate should be distributed according to intestacy laws.

Orders